Property – N.C. Family Law Bloghttps://gastoniafamilylaw.com
A divorce and custody blog brought to you by McIlveen Family Law Firm
Mon, 21 Jan 2019 19:38:49 +0000 en
hourly
1 http://wordpress.com/https://s0.wp.com/i/buttonw-com.pngProperty – N.C. Family Law Bloghttps://gastoniafamilylaw.com
New Equitable Distribution Lawhttps://gastoniafamilylaw.com/2014/02/25/new-equitable-distribution-law/
Tue, 25 Feb 2014 19:46:58 +0000http://gastoniafamilylaw.com/?p=694Continue reading →]]>As though the concept of equitable distribution wasn’t confusing enough already… now there’s new law out there regarding marital gifts when it comes to real property! Don’t worry; I’ll try to break it down for you.

On October 1, 2013, the North Carolina Courts, through S.L. 2013-103, amended the marital property presumptions found in G.S. 50-20(b)(1) to specifically include property acquired as tenants by the entirety. Here is how the statute reads now:

It is presumed that all property acquired after the date of marriage and before the date of separation is marital except property which is separate property under subdivision (2) of this subsection. It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence.

This new law basically means that any real estate, or “real property” as the legal term goes, bought during the marriage and prior to separating from your spouse is presumed to be marital property. Additionally, any money used to buy this house, whether separate or not, is considered marital. As a reminder, marital property in North Carolina is generally split about 50/50 during a divorce, which is why this law is so important.

So, how does this work in real life? Let’s say you have a $100,000 inheritance and want to buy a home with your spouse. When you use this inheritance to buy a home during your marriage, if you go through a divorce, you won’t get that $100,000 back. Essentially, your inheritance becomes a gift to the marriage and marital property. Now, what if you don’t want your inheritance to become marital property when you buy a home? You would need a document executed around the time you purchased the property stating that you don’t intend for your inheritance to become marital property.

If you want more information about the new equitable distribution law, please click the link below for an in-depth article discussing the new law and its ramification.

An executive’s estranged wife will sue her husband in federal court. According to the wife, he was involved in a fraud to obliterate a financial services company, and was hiding assets from her in the Cayman Islands.

The couple married in 1989, before the husband became a hedge-fund executive who made at least $40 million on Wall Street.

When the couple’s relationship soured, the husband filed for divorce and sued his wife in 2010. The wife then began to uncover her husband’s suspected fraud, and the lawsuit stated that he started to move his assets into undisclosed accounts as early as 2005. These accounts were sealed off from his wife and the White Plains State Supreme Court, where the divorce was being processed.

The wife claims that her husband’s wealth was illegally acquired. She states that he and his partners devised a scheme to eliminate a financial services company based in Toronto, and to make money short-selling its stocks or betting on it to lose. The Toronto-based company sued the husband and his company in 2006, alleging that they had been “bear raid” victims. Although the husband and his company were dismissed from the lawsuit later on, it still has not been resolved.

In the wife’s own lawsuit filed in the White Plains U.S. District Court last July 9, however, she stated that her husband played a key role in their ploy. The lawsuit claims that in her husband’s quest to amass his fortune, he had marked his career with repeated criminal activity. The wife claims that part of her husband and his alleged scheme involved planting detrimental stories in the media. With this claim, she may be entitled to obtain damages due to the RICO or the Racketeer Influenced and Corrupt Organizations Act.

The husband was served with his wife’s lawsuit, although his attorney called it an attempt to harass his client and increase his client’s costs of litigation for the pending divorce. The husband’s attorney also expressed that he would ask the judge to dismiss the lawsuit, and that he intended to file a Rule 11 motion. This motion may just force the wife to pay for her husband’s legal fees if her lawsuit is deemed frivolous.

In a recent interview, the husband’s attorney stated that he expects the case to be dismissed on the merits that the case is baseless. He also noted that the case was filed a few days after the wife lost custody of her children to her husband.

Both husband and wife recently convened at a hearing, and the judge gave deadlines to the attorneys to file their amended pleadings or motions. The next court date for the case has not yet been scheduled.

As you can see divorce cases are often very complex, especially when high dollar assets are involved. If you need a consultation on divorce and family law matters, contact an experienced family attorney immediately. If you are from the state of North Carolina, call The McIlveen Family Law Firm at (704) 557-0131 or visit their website at http://www.mcilveenfamilylaw.com

The ink on the marriage license is barely dry and the next step for most couples is to buy a home together. So, what happens when happily ever after becomes more like nightmare before Christmas and you’re signing divorce papers?

Sure, if you are pleasant and agreeable (not usual) you can avoid equitable distribution, and you and your spouse split the property acquired during the marriage based on who wants what. But even in the best of cases, houses don’t tend to survive when cut down the middle, so how do you split the house?

There are a few options and each depends on your circumstances. If you both are able and willing to move out then you can agree that the house is to be put up for sale. If one party is willing to move out then the other party can stay in the home until it sales. The sale will pay off any debt owed on the house or property, and the remaining “profit” would be divided 50/50 between you and your spouse.

Yes, I know you want to keep the house and live in it, right? Well that is an option, too. You can “buy” your ex-spouses half of the house.

There are other creative options, so speak to your attorney, be clear about what your needs are, and be open to compromise– I mean really would a house with half of the walls be any use to you?

Related articles

]]>https://gastoniafamilylaw.com/2012/05/17/sticks-and-stones-may-break-your-bones-the-problem-with-marital-property/feed/2jollyangela30.15 million viewers watched Den Watts serve ...5 Suggestions For Staying Calm During a Divorce Hearinghttps://gastoniafamilylaw.com/2012/02/20/5-suggestions-for-staying-calm-during-a-divorce-hearing/
https://gastoniafamilylaw.com/2012/02/20/5-suggestions-for-staying-calm-during-a-divorce-hearing/#respondMon, 20 Feb 2012 17:24:35 +0000http://gastoniafamilylaw.com/?p=374Continue reading →]]>You have hired an attorney, maybe you have been to mediation, and now you are going to your first divorce hearing. It might be a hearing for temporary custody or temporary alimony or it could be that you have skipped the temporary hearings and you are going straight to trial on custody or support. Either way, I’m sure you are nervous and a little unsure about what is going to happen. Here are 5 Tips on how to keep your cool during a court hearing or trial.

Breathe. I know this one may seem silly but people have a tendency to hold their breath when they are nervous or scared. The last thing you want to do during your hearing is pass out. Breathe in through your nose and out softly through your mouth. No one will be able to tell you are doing this and it will help lower your blood pressure and make you feel calm.

Dress nicely but wear something that is comfortable for you. If you aren’t a three-piece suit kind of guy, your first court hearing isn’t the place to try out a new suit. For men, slacks and a dress shirt are normally fine. For women, a blouse and slacks or skirt will be fine. Remember the courtroom can be cold or hot, so wear a jacket or sweater that you can take off during breaks if things get too hot.

Don’t sweat the small stuff. I know it’s hard when you are listening to your soon-to-be ex spouse saying snide things about you on the witness stand but keep your composure. It’s likely that much of what he/she is saying won’t make a difference to the judge.

Drink plenty of water. Staying hydrated is especially important when you are nervous or scared. Often times the court staff will put water and cups on the table for you but if they don’t get a sip from the water fountain during breaks. It also doesn’t hurt to bring a healthy snack such as a granola bar that you can eat during a break if you don’t have time for a real lunch. A day in court can be surprisingly exhausting. Fueling your body can make it a bit easier.

Be ready. Before you ever get into a courtroom hearing you should talk with your attorney about what is going to happen and what you need to do to be prepared. Sometimes attorneys who have done this a hundred times forget the small stuff that may leave you feeling unprepared. Things such as which side goes first? (usually the plaintiff) And, why does the judge call the attorneys up to where he sits? (usually to make an evidentiary ruling but sometimes just to ask about an unrelated matter) Make a list of questions and bring it with you to talk with your divorce lawyer several days before your hearing. Knowing the procedural parts of the hearing will make you more comfortable when you are actually in the courtroom.

Following these 5 Tips won’t guarantee you success in the courtroom but they will make your first court hearing a little easier for you.

It’s that time of year again. The holidays are gone. The tree is down. W-2’s will be in the mail and on their way before you know it. Each year tax season brings with it new law, new questions, and new decisions. Adding a divorce or separation in the mix makes things even more complicated. Here are 5 tax implications to consider:

1. Did you receive or make alimony payments in 2011? You may deduct from income the amount of alimony or separate maintenance you paid, and you must include in income the amount of alimony or separate maintenance you received. The IRS does not limit what you report as alimony to only amounts that you designate as alimony. Noncash property settlements, whether in a lump sum or installments, do not qualify as alimony. Voluntary payments (i.e., payments not required by a divorce decree or separation instrument) do not qualify as alimony. Review topic 452 on the IRS.gov website.

2. Did you make or receive child support payments? Child support is never deductible. If your decree of divorce or separate maintenance provides for alimony and child support, and you pay less than the total required, the payments apply first to child support. Any remaining amount is considered alimony.

3. Did you move? If yes, you need to report your new address to the IRS. If you didn’t do so for 2011 be sure to update your tax withholding status with your employer for the new year.

4. Part of your divorce cost may be tax deductible. You cannot deduct legal fees and court costs for getting a divorce. But you may be able to deduct legal fees paid for tax advice in connection with a divorce and legal fees to get alimony. In addition, you may be able to deduct fees you pay to appraisers, actuaries, and accountants for services in determining your correct tax or in helping to get alimony. Talk with your accountant or CPA about this issue and be sure to bring all of your receipts and documentation with you to your appointment when you have your taxes completed.

5. Did you and your spouse sell property as part of your divorce? If so, you must report your share of the gain or loss on your income tax return for the year of the sale. This is determined by your state law governing ownership of property. For information see IRS Publication 544.

Related articles

]]>https://gastoniafamilylaw.com/2012/01/11/5-tax-implications-and-divorce/feed/3jollyangelaTaxWhat is Collaborative Divorce?https://gastoniafamilylaw.com/2011/12/06/what-is-collaborative-divorce/
https://gastoniafamilylaw.com/2011/12/06/what-is-collaborative-divorce/#respondTue, 06 Dec 2011 13:40:37 +0000http://gastoniafamilylaw.com/?p=221Continue reading →]]>Collaborative divorce is one of the newest methods for resolving your divorce and custody dispute. The way it works is that each party (you and your spouse) retain separate attorneys. Both you, your spouse, and each of your individual attorneys agree to work together to negotiate a settlement. You all agree that you will not litigate the case while you are working on reaching an agreement. The parties typically enter into a “Participation Agreement”. The Agreement sets out the basic parameters of how the parties and their attorneys will work together. The attorneys agree that if the case can not be worked out then the parties will have to hire new attorneys to litigate the matter.

“The “Participation Agreement” entered into by the parties, sets out the commitments in collaborative divorce. In most cases the Participation Agreement generally contains provisions such as:

* it is agreed that the outstanding issues will be settled in a non-adversarial manner using interest-based negotiation;

* the parties will rely on their lawyers to assist them in reaching the settlement;

* the parties will act in their children’s best interests to promote the relationships between the children and the parties and to minimize any emotional damage to the children as a result of the separation;

* all communications during the process will be constructive and fair, and will not take advantage of any errors made by the other party;

* neutral experts may be retained;

* the reasons and process for withdrawing from or ending the process;

* the status quo will be maintained in regards to the children and no unilateral changes will be made to assets, insurance coverages or other matters during the process without consent

The most important element of collaborative divorce is that the lawyers commit to manage the conflict, emotional issues and relationship issues creatively.

Divorce can be a very confusing, often difficult time. And after the papers have been signed, things have been moved, and lives have been uprooted, nothing every really goes back to being the same. If you’ve recently been divorced, you may find yourself looking for a new home, or managing your finances on your own for the first time. If you have children, then the transition into a single-parent lifestyle can be lonely and complicated.

You may even find yourself wondering “what should I do now?” More than 40 percent of marriages in America end in divorce, so you can take comfort in the fact that you are not alone in your struggle

A successful recovery after a divorce involves a combination of small steps that together make leaping improvements. The Survivors Club has collected a list of 20 Do’s and Don’ts that can help you move ahead after divorce and guide you to a successful new, unmarried, life.10 Post-Divorce Do’s

1. Clean Out Your Closest: In any relationship, often you collect a lot of stuff that reminds you of your ex-partner. Take time to go through your closets and decide what will actually serve you after your recent divorce. Throw away the rest.

2. Spend Quality Time with Your Kids: Now that you are on your own, you might get overwhelmed with adjusting to new everyday matters, but do not lose sight of the bigger picture. You may a lot more to manage but give yourself permission to play with your kids and relax. Play a video game with your son or paint your daughter’s nails. Your children will treasure these fun moments with you infinitely more than their ironed shirt.

3. Organize Your Finances: After the split, you now hold all the responsibility for your finances. Regardless of your financial role during your marriage, now you must face any fears and manage your accounts. Take time to learn the ins and outs of your debt and credit.

4. Make Forgiveness a Priority: If you are unable to forgive your ex or yourself, moving on will be a struggle. An unforgiving heart is the biggest obstacle to letting go. Find true forgiveness and you will live a full and rich life.

5. Focus on Your Well-Being: It is time to take care of your body. Start by getting a physical from your doctor, a dental check-up and any other necessary health exams. Everyday exercise and nutrition is important too. When you feel good, your problems begin to seem lighter.

6. Look Inward: Take the time after divorce to look inward and try to understand yourself. The new freedom of being recently single can be scary, but make an intention to dedicate time to yourself. You now have space in your life to discard any unwanted habits and welcome activities that will bring you joy. Do not seek out a new partner to fill the empty space that you must learn to fill yourself in order to be happy.

7. Keep Relations Between Parents and Children Positive: Your children didn’t ask for a divorce. The unwanted change will be difficult for them, so it is important to work at keeping the relations between both parents and children loving, warm and civil.

8. Grieve Your Loss, Then Let Go: Take down your photos and listen to “your” songs and give yourself the courtesy to grieve the loss. Allow yourself a set grieving period and resolve to move forward after your scheduled time to mourn. Commit to letting go of the negative thoughts after your grieving period ends.

9. Get Reacquainted with Your Personal Preferences: When you are part of a couple, many of your choices are made by the other person. Remind yourself of your preferences by trying new things and relearning what makes you happy. What do you like and dislike? Give yourself the freedom to explore.

10. Protect Your Credit Score: With all the stress and emotions that accompany a divorce, manydivorcees lose focus on their credit score. Don’t let a bad credit score add to your problems. By taking the initiative to raise your credit at the beginning of the break-up, you will prevent unnecessary stress later.

10 Divorce Don’ts

1. Don’t Isolate Yourself: Especially during the holiday season, surround yourself with loving relations. Plan a potluck gathering and ask your guests to invite new people. Surround yourself with love and don’t be afraid to ask for support from others if you need it.

2. Avoid Starting Bad Habits: After a divorce, it is important to remember that you are the most important person in your life. Don’t get stuck on the couch eating ice cream. Join a gym and attend regularly or go to an spinning or yoga class. Eat well and focus on yourself. Buy yourself some new clothes that are flattering.

3. Skip the Rebound Relationship: Many therapists recommend a full year of recovery for people after their divorce. Allow yourself some time to feel grounded. Rebound relationships are usually not good for either person involved. Only you will know when you are ready to start dating again and don’t let others pressure you into making the move.

4. Don’t Leave Belongings at Your Ex’s Place: If the relationship is over and you still have many of your belongings at your ex’s place, it is time to collect them and leave for good. You can more easily move on after making a clean break.

5. Avoid Placing Blame: Don’t beat yourself up about your loss because a sour relationship takes two. You didn’t cause all the problems and neither did your ex-spouse. After your divorce be gentle with yourself and recognize that you are unique and special. Don’t let your own belittling thoughts bring down your self-esteem.

6. Try Not to Make Assumptions: It is easy to assume something will turn out a certain way — the judge will rule in your favor or your attorney has you covered — but often life unfolds differently than we expect. A divorce causes many unexpected things to occur. Remain open to reality rather than closing yourself off based on your assumptions.

7. Don’t Refuse Communication With Your Ex: Unless the relationship was abusive, and especially if you have kids together, try to be civil with your ex if they approach you. If your ex-spouse contacts you with an issue about the divorce or marriage listen to them.

8. Avoid Making Expectations: You may expect things to turn out a certain way after divorce. You may expect your ex-partner to be civil. Since we often do not get what we expect, lose the expectations and take life as it comes. You won’t be as let down.

9. Don’t Forget the Good Times: Although your first instinct might be to feel dislike or even hatred towards your ex, this will get you nowhere. Accept that things have changed but that you still have many positive memories of your ex-partner – don’t forget them.

10. Stop Being Bitter: Your past is past. Look towards your future. Take time to set new intentions and take small daily steps in your desired direction.

Surviving a divorce is a challenge. Remember to take things as they come day by day. If you want more support during your divorce, the Survivors Club support center can help you cope with the situation.

]]>https://gastoniafamilylaw.com/2011/12/01/20-dos-and-donts-for-surviving-divorce/feed/0jollyangelaGetting Divorced? Check Your Facebook Page!https://gastoniafamilylaw.com/2011/11/30/getting-divorced-check-your-facebook-page/
https://gastoniafamilylaw.com/2011/11/30/getting-divorced-check-your-facebook-page/#commentsWed, 30 Nov 2011 21:57:41 +0000http://gastoniafamilylaw.com/?p=180Continue reading →]]>Facebook has become a divorce attorney’s dream. People post on facebook things that in the past an attorney could only have gotten by hiring a private investigator. It seems today that everyone is sharing their dirty laundry with their online friends. If you are getting a divorce or even thinking about getting a divorce take a hard look at your facebook page. Is there anything on there that you wouldn’t want your spouse, attorneys, or the judge to see?

If you have posts on your facebook page about going out drinking or who your are dating your spouse’s Gastonia NC divorce lawyers will swoop in and print them off. Those posts can be used as evidence against you in trial. Don’t forget about your friends pages either. Does Sally have a juicy photo of you out on the town posted for the world to see? If so I can find it. Also remember that Videos on YouTube, text messages, dating services, voice mail, cellphones, even Global Positioning System receivers and E-ZPass records can be gold mines of potentially damaging information.

]]>https://gastoniafamilylaw.com/2011/11/30/getting-divorced-check-your-facebook-page/feed/1jollyangelaThinking about Divorce? Do These 10 Things Firsthttps://gastoniafamilylaw.com/2011/11/30/thinking-about-divorce-do-these-10-things-first/
https://gastoniafamilylaw.com/2011/11/30/thinking-about-divorce-do-these-10-things-first/#commentsWed, 30 Nov 2011 21:39:02 +0000http://gastoniafamilylaw.com/?p=172Continue reading →]]>1.Talk to a marriage counselor. Divorce is not easy on anyone. If you don’t know a counselor call our office and we can refer you to someone that can help. Do this even if your spouse doesn’t want to go with you. Also, think about talking with a pastor.

2. Consult with an attorney. There are a number of things that are affected just by you moving out of your home. Contact our office at (704) 865-9011 to schedule a consultation with an experienced attorney. You don’t want to move out or take action only to find out you have waived your rights.

3. Think about your finances. Do you have a credit card in your name? Do you have access to a bank account? These are things you may want to do before you move out. Also make copies of all financial records and important papers (birth certificates, bank statements, tax returns) while you have access to them.

4. Find out your spouses income. You need to know as much as possible about how much your spouse makes and when he/she is paid. If you and your spouse own a business make copies of all of the account information you can get access to.

5. Don’t move out of the marital home. You don’t want to move out of the home before talking with an attorney. Moving out of the home might have implications on alimony. You also aren’t likely to be able to move back into the home until a judge determines property issues which in some counties may take up to one year.

6. Understand your debt situation. Is there a mortgage on your house? How much is it? How much is your house worth on the market today if you had to sale it? Do you own cars or lease them? How much is owed on each and what is the value of each car? Do either you or your spouse have credit cards? How much is on each of them?

7. Have a plan for how you will support yourself when you leave. If you are a stay at home parent this is especially important to you. Talk to an attorney and find out if you are entitled to alimony. Find out how much child support you might be able to get. Ask how long it will take for money to start coming in. Have a plan for getting a job.

8. If you have children stay involved in their activities. Have you been especially busy at work lately? Make time to attend school events. Drive your children to or from school. Find out who their doctors are and who their friends and teachers are. Be an involved parent.

9. Don’t spill your guts about any affairs. It may seem like a good time to come clean but it isn’t. Adultery can be considered by a judge when deciding issues of alimony.

10. Plan your exit. If you have decided that a divorce is what you want make sure you protect your assets when you move out. Close joint checking accounts, take your spouses name or your name off of credit cards, change the names on the utility bills, and take any cherished personal items (heirlooms, yearbooks, photos) with you when you leave.

]]>https://gastoniafamilylaw.com/2011/11/30/thinking-about-divorce-do-these-10-things-first/feed/1jollyangelaEquitable Distribution Case Law Updateshttps://gastoniafamilylaw.com/2011/10/30/equitable-distribution/
https://gastoniafamilylaw.com/2011/10/30/equitable-distribution/#respondSun, 30 Oct 2011 18:58:50 +0000http://gastoniafamilylaw.com/?p=116Continue reading →]]>Cheek v. Cheek, filed N.C. Court of Appeals, April 19, 2011 (No. 10-736). Defendant appealed from the trial court’s equitable distribution order. First, Defendant argued that the trial court failed to classify properly the post-separation diminution in her retirement accounts as divisible property and apportion the loss between the parties. The court held that the lower court failed to make adequate findings of fact as to whether the change in the value of these accounts was due to her actions or to passive forces. Despite its decision to remand the issue for entry of findings of fact, the court stated that the trial court did not err in failing to classify the change in the value of the accounts as divisible because the Defendant’s actions in selling stocks, moving her money to a different account with a different firm and trading with the resulting funds were “managerial contributions” consistent with active depreciation.

Next, Defendant argued that Plaintiff’s retirement should have been distributed in-kind, based on the statutory presumption that an in-kind distribution is equitable. The court rejected this argument, noting that the in-kind presumption is subject to a preceding presumption, that an equal distribution is equitable. However, the court stopped short, failing to explain whether the trial court ever concluded that an unequal distribution was equitable. Defendant also argued that the court erred by failing to consider the tax ramifications of its order. The Court stated that because no evidence of tax consequences was presented, it would have been error for the court to consider such consequences in its order.

Finally, Defendant argued that the trial court failed to classify and distribute an insurance check and one of plaintiff’s checking accounts. The Court held that it found no abuse of discretion by the trial court in its failure to consider the value of the insurance check for damage to the house as distinct from the value of the home, but remanded to the trial court for findings of fact related to source of funds for Plaintiff’s checking account.